2022 Shepherd Oration - Keynote Address - Ms Rebekah Giles

I begin today by acknowledging the Traditional Custodians of the land on which we meet today – the Gadigal people of the Iora nation - and pay my respects to their Elders past and present. I extend that respect to Aboriginal and Torres Strait Islander peoples here this evening.

I’d also like to thank Philip Chronican and the National Australia Bank for their generous hospitality this evening and of course their ongoing support of the oration. What an honour it is to deliver this year’s oration. And thank you to Senator Bragg for the invitation.

Tony Shepherd is someone who has a profound impact on my life - both personally and professionally.  He has been a steadfast supporter of diversity in all forms - but particularly diversity of thought - and has been a source of encouragement for me to continue to challenge, meaningfully contribute to public debate, and put forward alternative ideas.

And I’m delighted to be able to do this tonight in such a pleasant and welcoming environment because let me tell you it’s brutal out there. Protecting the interests of those who suffer reputational harm is risky business – it is not for the sensitive or faint hearted.

In many ways, you tie yourself to your client and their predicament.  Over the years I’ve been described by the Twitterati as a raving leftie , a rabid feminist , corrupt , a man hater , a Liberal Party scumbag. In the eyes of the public, their politics are mine as are their perceived misdeeds or shortcomings.

As a defamation lawyer, you unwittingly become the sworn enemy of two powerful and well-connected groups.

The first are the stakeholders who rail hard against legal accountability for commercial reasons because their own business models damage reputations. These stakeholders, commonly media organisations and or digital platforms, assume the representation of the public interest in the law reform debate often to no opposition.

The second group are advocates for social movements - well-meaning and fed-up revolutionaries seeking to bring about cultural change. In their view, the end justifies the means even if it involves upending the rule of law by challenging the fundamental principles of our justice system.  We have seen this in full effect in recent weeks with reaction to the DPP’s decision to abandon their prosecution of Bruce Lehrmann.

What these two vocal groups have in common is a commitment to advancing the abstract notion of free speech.  The media argue that this is essential to hold power to account and Me Too advocates want complainants to be able to tell stories in the public sphere without fear of legal consequence.

But unfettered communication is no panacea for social ills.  It will not advance the interests of women or increase our collective knowledge. True free speech actually undermines the social practices that make us a civil society and if we were to abandon those practices, we would descend into chaos – causing more hatred harm and damage. Think Elon Musk’s Twitter IRL. Yale University’s Professor Post published an essay last month where he said:

“ Unrestrained expression may be appropriate for patients in primal scream therapy, but scarcely anywhere else .”

The human right to free speech which is enshrined in the 1974 International Convention on Civil and Political Rights sits right alongside the human right to be protected against attacks on one’s honour or reputation.

And this is what defamation law seeks to do: balance these competing human rights.  One of the leading authorities on these colliding rights is the British case of Reynolds which involved a defamation claim against the Times newspaper. In that case Lord Nicholls said:

Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good.

Despite the obvious logic of Lord Nicholls, loss of reputation or honour is often only really understood through personal experience. The most ardent proponents of free speech suddenly change their perspective when it is them or one of their loved ones under attack.

The tension between competing rights is often mischievously mischaracterised as a tug of war between the powerful and privileged on the one hand and those who seek transparency and accountability on the other.  Yet defamation laws have been used with powerful effect by one of the faces of the Me Too movement in Australia Brittany Higgins, disabled indigenous child Quaden Bayle, feminist activist and journalist Clementine Ford, actress Judy Davis, Greens senator Sarah Hanson Young, young lawyer Bridget Styles against mega law firm Clayton Utz, school teachers, police officers, the many members of the Muslim community improperly accused of engaging terrorism in the post 9-11 media.

Proponents of free speech cite the first amendment protections in the US as the gold standard.  But the reality is that unfettered speech does not exist in the US, a country where eyewatering defamation awards are made every day.  One only has to recall the spectacle that was the Depp and Heard trial or the $75m award against Alex Jones to the parents of the Sandy Hook victims in by a Texan court earlier this year.

In Australia, the Commonwealth fetters free speech in so many ways. The Racial Discrimination Act legislation has been in place for longer than I have been alive.  And there is the Australian Consumer Law that prohibits us from lying to consumers about our goods and services - that is a fetter on free speech.  Intellectual property laws – these are so important to those in business to protect to proprietary rights in favour of unfettered free speech in advertising.  And most recently, an amazing initiative of the government, the Online Safety Act which says that cyber abuse and bullying and harassment online is unacceptable. This recent legislation which only came into effect this year is in fact yet another restraint on free speech.

The Commonwealth, particularly when it comes to the internet and its broad powers under the Constitution in relation to broadcasting, telecommunications and corporations, needs to round off its suite of legislation by taking control of Australia’s defamation laws by making them sensible, uniform and modernised.

In 2004 the then Attorney General Philip Ruddock’s proposal of a Commonwealth Act was superseded by the States who rushed in to pass the so-called Uniform Defamation Act in 2005 proclaiming uniformity as a central objective as if the federation of States did not exist.  This has been a disaster for almost 2 decades because the uniform laws were not adopted in every state and territory leaving the door open for forum shopping.

Attempts at reform have been an abysmal failure on every level.  The states are still flailing in their inability to grapple with the internet. Retirees in their 80s appear to manage social media accounts yet the great state of New South Wales is unable to provide us to with a comprehensible draft that defines an internet service provider.

I’m plainly much younger than the rest of you in this room so I cannot speak directly to your knowledge and experience on these topics but my recollection is that the internet has been around for some decades and social media in its basic form has been with us longer than the current Defamation Act which was passed in 2005.

Rather than addressing the internet and social media in their first round of reforms two years ago as they intended to, the states mandated how solicitors should structure and write their letters of demands.  Hardly an urgent or pressing issue but apparently so important they included it without consultation of the profession to whom it applies resulting in more work for lawyers but more cost to clients.

The internet was completely ignored by the states in the stage 1 reforms with one important exception.  NSW realised that serving a letter by post or facsimile should be updated to allow the use of email but only if that email was listed as an address where service could be effected.  That was the bold and brave change made by the states in the 2020 amendments having realised after 25 years of email communication it ought to be mentioned in the Act.

The states latest contribution to defamation law reform, contrary to the interests of all Australians (including Australian media) is to grant unreasoned, unprincipled and unfair immunities from defamation claims solely to the mega corporations which operate the world’s social media platforms.  These businesses are largely unregulated by our government being incorporated in the US or China and earn profits in sum of hundreds of billions of dollars each year.

Call me callous but I really shed no tears when Google is held to account for persisting in the publication of false, defamatory and racist cyber abuse material after being on notice of its content for months.  Call me cold hearted but a $700,000 damages award coming out of last years’ profit of $146 billion profit is hardly cause for alarm. And call me cynical when I struggle to understand why these companies are able to find the time and energy to resource and support their eye watering advertising revenue streams but unable to moderate defamation complaints.

In proposing this legislation, the states have offered no explanation as to why the dangerous brand of free speech being peddled by Elon Musk is being preferred over the reputations of everyday Australians. When Twitter fires staff charged with the responsibility of making the platform more trustworthy and less toxic and reinstates known liars to its platform, one has to ask why our state government is seeking to give this platform a leg up?

As someone who deals with these issues every day, I can tell you that complaining directly to the platform is often the only way to quickly deal with damaging and malicious online content. Last year the Senate heard compelling evidence in the Social Media Anti Trolling inquiry as to the practical hurdles pursuing social media users who are often anonymous and outside of the jurisdiction. The Commonwealth must exercise its powers to protect its citizens by ensuring that there remains a fault-based liability for internet intermediaries that fail to act after being on notice of damaging material.

And when it comes to defamation law reform the media stakeholders want to eat cake and ice cream and chocolate chip cookies without understanding why they should also have to eat their vegetables.  And often when you hear or read the media’s perspective on reforms or their complaints about the current law (usually read because the media refuse to debate the issue or engage with a single paper my colleagues and I have written on this issue)  I have to compare them with the reasoning metered out by my children when they tell me that they are full and cannot possibly have another bite of broccoli but they have room for dessert.

Despite what one would think is the role of journalists as communicators and wordsmiths, their major complaint about defamation law is that lawyers and judges unfairly hold them to account for the true meaning of what they have said.

In a recent decision of the Federal Court a judge analysed the techniques used in a media report to undeniably tarnish a person with guilt of very serious criminal offences while the journalist claimed until he was blue in the face that that is not what he said.

The media want unfettered freedom of speech, but they want the sort of speech that can only be described as gluttony because they refuse to acknowledge that there should be some accountability when they make errors or in some cases that I’ve seen tell outright lies.

The media don’t want to be held accountable by defamation laws because they think its too hard to go to court and prove the truth of what they allege. Yet as so-called professionals there is no body that holds journalists to account. They don’t have to meet any standards of ethics or competence to call themselves journalists, no requirement that they be fit or proper persons to give themselves that title and like other professions they cannot be held to account by a negligence claim. Why are they more important to society than builders, doctors, nurses and teachers who all have to adhere to certain standards and are answerable when they don’t? Rather than appreciating the absolutely privileged position that they hold compared to all of those other trades and professions they still complain because they can be held to account when they ruin a person’s career, job, health, friendships and relationships by sloppy or unethical practices.

As Lord Nicholls said more than 20 years ago the protection of reputation of individuals is in the interests of all society including the business leaders that are in this room. It is as fundamental a human right as the entitlement to speak freely and has to be protected by our legislators.  The companies that say otherwise need to accept that a balanced diet is a necessary part of a healthy existence and they need to eat their vegetables.

Only a few weeks ago for the first time in its history the Walkley Foundation withdrew its 2021 award to Nine for its reporting of serious allegations of criminality against Andrew Laming which led to his resignation from federal parliament after 17 years in politics.

That outcome would have never occurred if it wasn’t for laws that gave Dr Laming a remedy in defamation.  Even after notifying Nine of his legal claim, Nine doubled down self-nominating for the award which won it 3 Clarions from the media’s own union, the MEAA, and a Walkley Award.

The public response to the Walkley Foundation from Nine was predictable disappointment and to lament the defamation laws which they said ‘presents a threat to public interest journalism’ which I have to say was puzzling given that Nine did not seek to defend the defamation proceedings on that basis or in the end, on any substantive defence withdrawing its defence only weeks before trial.  The proceedings ultimately settled on a confidential basis that involved Nine publicly withdrawing the allegation and apologising to Laming and his family in open court and on its own platform.

Time and time again news editors, TV hosts, commentators, panels at Writer’s Festivals call for defamation law reform, spinning rhetoric about the ‘chilling effects’ and using the catch cry ‘Defamation Nation’. But I’m yet to be confronted with precise detail as to how those laws operate unfairly to the media. And it’s a debate that I would welcome – because when Andrew Laming’s case is used as the example of why defamation laws need to be reformed, it seems to me that the problem isn’t the defamation laws but a lack of insight as to the impact defamatory matters have on the lives of citizens.

That being said, defamation laws do need to be modernised to reflect the impact and workings of the internet and social media. Legislation needs to address the responsibilities and liability of digital platforms for defamatory content online. The proposals of the State government thus far on this issue and its approach to stakeholder consultation in the stage 1 reforms would indicate that these reforms should be abandoned at this level and assumed by the Commonwealth or even the Australian Law Reform Commission who can undertake proper research as well as balanced, principled and comprehensive consultation.

The reality is that these are not domestic issues. They are issues of international importance in which Australia is only one of all of the countries affected.  It is in the national interest for the Commonwealth to engage with other nations on these issue and act for the protection of its citizens. And this is a matter on which there ought to be bi-partisan support.